University’s Strategic Plan Also Violates the First Amendment, Ex-Professor Argues

Washington State University’s library system has banned a book that criticizes university administrators for violating the free-speech rights of faculty and students on a half dozen occasions between 2005 and 2015.

The 544-page book — titled The Lonely Activist: An American Odyssey — was written by former tenured WSU journalism professor Dr. David K. Demers, who sued the university in 2009 when it attempted to punish him for offering a 7-Step Plan in 2007 to improve the quality of the Edward R. Murrow College of Communication.

The Ninth Circuit Court of Appeals ruled in 2014 that the plan was protected speech under the First Amendment. WSU declined to appeal to the U.S. Supreme Court and the case was settled later that year, when the university paid Demers $120,000 in attorney’s fees. The Lonely Activist contains an extensive history of the case and its impact on universities.

During the past year, Demers said he mailed two copies of the book to “acquisitions” at the WSU library and one copy directly to Jay Starratt, dean of the libraries. All three books were delivered, according to U.S. Postal Service records. In the August 2016 mailing to Starratt, Demers included a letter in which he noted the problems he had been having in getting the book placed in the WSU library system. Starratt did not respond.

The book is available in libraries at Eastern Washington University, University of Washington, Harvard University, University of Minnesota, and The Ohio State University.

“Some WSU administrators clearly don’t get it,” Demers said. “They should be embracing information that draws attention to past problems of free speech on campus, not banning books or promoting or rewarding administrators who in the past have shown disrespect for academic freedom and the First Amendment.”

Two days ago a copy of this news release was e-mailed to current WSU President Kirk Schulz and to Provost Daniel Bernardo and Starratt, giving them an opportunity to respond. They did not respond.

In Demers’ lawsuit (Demers v. Austin, et al., 2014, Ninth Circuit), President Elson Floyd and four administrators who were named as defendants tried to argue that faculty are not deserving of free-speech rights when they speak in their service-related or “professional” roles -- or what some legal experts call their “shared-governance roles.”

In an amicus curiae brief, the American Association of University Professors and The Thomas Jefferson Center for the Protection of Freedom of Expression argued that professors cannot do their jobs if they can be punished for speech uttered on issues of public concern during faculty and committee meetings.

In spring 2009, Floyd deliberately withheld a report from then Washington state Auditor Brian Sonntag, who concluded that an internal investigation of Demers was marred by an auditor’s conflict of the interest. Demers criticized Floyd in his book for the unethical act. The auditor continues to work at the university.

Floyd died of cancer in 2015, but vestiges of his administration continue to wield power at WSU and are still trying to force some tenured faculty from their jobs in violation of AAUP guidelines on tenure and academic freedom — another free-speech issue of concern addressed in Demers’ book.

Demers also said WSU’s current (2014-2019) strategic plan violates the First Amendment, because it only protects speech on campus that is “constructive and civil.” The courts have consistently ruled that the First also protects uncivil speech, as long as it doesn’t turn violent, he said. The previous WSU strategic plan (2008-2013) protected uncivil speech after Demers suggested to administrators in 2007 that the language be changed to “encouraging,” but not requiring, civil speech.

“Somehow that word (encouraging) got dropped from the current strategic plan,” Demers said.

Demers taught at WSU for 16 years before retiring in 2013. He lives in Phoenix and writes about free speech and civil liberties issues. A free PDF download of The Lonely Activist is available at www.acfcl.org/lonelyactivist.html.

A U.S. District Court judge erred when he ruled that a Washington State University professor was not entitled to First Amendment protection when he developed a controversial plan for restructuring and improving a journalism program, the Ninth Circuit Court of Appeal ruled Wednesday.

“The decision is a great victory for those who cherish academic freedom, free-speech ideals and shared governance,” said David Demers, a former tenured WSU professor who created the plan to improve the quality of education in the Edward R. Murrow School of Communication.

“Professors should be able to criticize administrators and their policies and play an active role in the affairs of the university,” added Demers, who left the university in 2012 and currently teaches a mass media law course in The Walter Cronkite School of Journalism and Mass Communication at Arizona State University. “The decision bolsters the idea that free-speech protection for professors extends beyond their academic research programs and the classroom. It covers our service role, too.”

Demers brought suit in 2010 alleging that four university administrators retaliated against him for distributing a “7-Step Plan” that sought to improve the quality of the Murrow program (Demers v. Austin, et al.).

The plan asked university administrators to give more power to professional faculty, to seek national accreditation for the Murrow School, and to remove a non-journalism major from the school. The latter program only served 60 of the 1,000 majors in the Murrow School but was consuming one-fourth of the school’s resources, Demers said. Demers also offered to donate $100,000 of his own money if the university implemented the plan.

University administrators ignored the plan.

When he submitted the plan, Demers said he assumed his speech was protected under the principles of shared governance and academic freedom.

The WSU administrator-defendants disagreed.

But instead of fighting the lawsuit on its merits, the defendants asked Spokane District Court Judge Robert H. Whaley to declare that professors, as employees, do not deserve First Amendment protection.

Whaley agreed and threw the case out of court, before it went to trial.

To support his decision, he cited the 2006 U.S. Supreme Court ruling in Garcetti v. Ceballos, which held that government employees (an assistant prosecuting attorney in this case) are not entitled to free-speech protection, even if those employees report criminal wrongdoing on the part of other government workers (the attorney learned that police officers had fabricated evidence to obtain a search warrant).

The high court ruled 5-4 against the “whistle blower,” with the conservative justices outflanking the moderates and liberals. The majority essentially ruled that it is better to control employees than to expose corruption, Demers said.

But the Ninth Circuit Court of Appeals panel, headed by Judge William A. Fletcher, ruled in the Demers case that Garcetti does not apply to professors, because “teaching and academic writing are at the core of the official duties of teachers and professors. Such teaching and writing are ‘a special concern of the First Amendment.’ ... We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court.”

The appeals court ruling means that, to receive First Amendment protection, a professor’s speech must address matters of public concern and the professor’s interest in the matter must outweigh the state’s interest in promoting efficiency on the job.

The appeals court remanded the Demers case to the Spokane District Court for further review. A trial date has not been set.

The defendants could appeal to the U.S. Supreme Court.

But Demers said this would hurt the reputation of the Murrow program even more.

“From the beginning, it never made any sense that administrators working in and supervising the Murrow journalism and mass communication programs would argue that journalism professors don’t deserve free-speech protection,” Demers said. “I think this is a case of where the administrative bureaucracy was so focused on winning that it forgot about the importance of principles. Free speech is a principle worth defending.”

Demers said the ruling is another black mark on the administration of WSU President Elson Floyd, who in 2009 concealed a report from the Washington state Auditor’s Office which concluded that a WSU internal audit of Demers was tainted by a conflict of interest.

The appeals court also ruled that the defendants have qualified immunity from financial damages because the Ninth Circuit has never clarified Garcetti. This means Demers cannot seek punitive damages. But Demers, who said the case has cost him about $350,000 so far, said he didn’t care.

“This was a case about principles and free-speech rights, not money.”

The American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression penned a friend-of-the-court brief in support of free-speech rights for faculty.

Demers taught at WSU for 16 years. He quit in 2012 to spend more time writing about civil liberties issues.

WSU has implemented some aspects of Demers’ 7-Step Plan, but the Murrow program, now a college, is not accredited by the Accrediting Council on Education in Journalism and Mass Communication. The Cronkite School is.

Teacher Who Stomps on American Flag Ironically Learns America Is Not Bigger than Its Symbols

A South Carolina high school teacher who praised America for emphasizing freedom and principles over symbols discovered last month that he was wrong.

The Lexington-Richland Board of Education in Chapin, South Carolina, fired Scott Compton on Jan. 14 for stomping on an American flag during a class in which he attempted to show students that principles like freedom and democracy are more important than the material objects representing those principles.

"Sadly, the board's decision to fire Compton means that, to some Americans, symbols are more important than principles," said David Demers, director of the non-partisan, not-for-profit American Center for Civil Liberties. "The elevation of symbols over freedom and democratic principles often precedes the slide into totalitarianism. Hitler's Germany and Stalin's Soviet Union are two good examples."

Compton has appealed his firing. The board is expected to make its decision March 5, 2013. It is not clear whether Compton will file a free-speech lawsuit if the school board rules against him.

For Immediate Release

WSU J-Professor Predicts U.S. Appeals Court Will Deny Faculty Right to Criticize Administrators

Defendants' legal position unwittingly pits Edward R. Murrow College against two free-speech organizations

A journalism professor who filed a free-speech lawsuit against four administrators at Washington State University is predicting the Ninth Circuit Court of Appeals will deny university professors, as employees, the right to criticize administrators and their policies.

“If I am right, it means the balance of power at universities in Washington state and six other western states will be radically altered,” said David Demers, an associate professor of communication in The Edward R. Murrow College of Communication at WSU. “The decision will undermine shared governance, a century-old principle in which professors share power with administrators when it comes to making decisions that affect university budgets and programs.”

Demers filed the lawsuit (Demers v. Austin, et al.) in 2010 when he was a tenured professor at WSU. He asserted that administrators associated with the Murrow program punished him in his annual reviews after he submitted a 7-Step Plan to improve the quality of the Murrow program and pledged to donate $100,000 of his own money if the university implemented it. The plan, which recommended a major restructuring of the program including the goal of seeking national accreditation, angered many administrators and faculty.

The four defendants, represented by the Washington state attorney general’s office, argued that tenured faculty like Demers, as employees, do not deserve free-speech protection. The AG’s legal position has unwittingly pitted the Murrow journalism program against two free-speech organizations. The American Association of University Professors and the Thomas Jefferson Center for the Protection of Free Expression wrote a joint amicus curiae brief in support of plaintiff Demers.

“Win or lose, the legal position that faculty do not deserve First Amendment rights forever taints the good name of broadcaster Ed Murrow as well as the College that bears his name,” Demers said. “This could have been avoided if the state attorneys had fought the case on its merits. But administrative bureaucracies don’t always act on principle.”

In June 2011, a U.S. District Court judge in Spokane agreed with the defendants that faculty do not deserve free-speech protection. Judge Robert H. Whaley cited as precedent a 2006 U.S. Supreme Court case, Garcetti v. Ceballos, which held that public employees do not have First Amendment protection for speech connected to their jobs. Public employees only have protection when they speak as private citizens.

The high court left open the door of whether professors, as teachers or researchers, have more free speech protection than other government employees. However, the court did not address the issue of whether professors deserve protection when they speak in their service roles, which often involves criticizing administrators when it comes to making decisions that affect university budgets and programs.

Demers appealed the district court decision, arguing that faculty should not be punished for criticizing administrators.

But in Seattle on November 7, 2012, two of the three appeals court judges who heard oral arguments in the case expressed doubts about whether Demers’ 7-Step Plan was private speech, even though the cover letter identified him as a private citizen.

“I have trouble — speaking only for myself — treating that 7-Step Plan as cleanly private speech,” said William A. Fletcher. “I understand that Dr. Demers sets it up that way. On the other hand, it originates when he is a member of a committee. It's clearly undertaken in tight relationship to his job and the things that he cares about in his job. He is suggesting an important restructuring of two departments. I mean, I have trouble seeing that as purely private speech.”

“Well, first of all, your honor, the question of whether it is part of his job duties, as this court has said in at least five cases, is a mixed question of fact and law that should be reserved for the trier of fact. In this case, the district court basically accepted all of the evidence that the university put forth and did not consider the evidence that Dr. Demers put forth ... . The 7-Step Plan as one component recommended a splitting of the mass comm[unication] and comm[unication] studies. The rest of it is not covered anywhere by any connection with his work in connection with the structure committee.”

“You know, I disagree with that,” Fletcher responded. “The 7-Step Plan ... is a thoughtful proposition for restructuring how journalism is taught, how the faculty is organized, how money is raised — all of that has to do with running of the institution in a very important way.”

Demers said the issue of shared governance never came up during the hearing.

“I’m not sure whether the judges are aware of the consequences of a ruling which denies professors free-speech protection when they offer alternative plans for structuring a university or when they criticize administrators. Such a decision will have tremendous adverse consequences for the balance of power at universities. No professor will feel secure in criticizing her or his university administrators.”

A ruling from the appeals court is expected in January or February 2013.